A friend just sent me a 2013 New Yorker article on the Reid Method of Interrogation called “The Interview: Do Police Interrogation Techniques Produce False Confessions?” I think I read it when it came out, but it was definitely worth a second read. In doing a little research on the subject, I also noticed that more media outlets are running with the story this including this article from the New York Times, this one from Psychology Today, and this one from PBS. The Reid Method of interrogation has been directly tied to wrongful convictions of individuals such as the Central Park Jogger case, and more. Despite all these criticism, it amazes me how much emphasis people put on confessions. More disconcerting in this tendency of many judges to bar expert testimony about the problems with false confession.

For a more academic analysis of what’s wrong with the Reid method, please review this article. This article is somewhat dated but excellent. It is written by two of the nation’s top experts.

The Reid method of interrogation remains popular despite the fact that it is roundly criticized. In fact, an early variation of the Reid method was critically referred to back in Miranda v Arizona. Innocence Projects around the country have further demonstrated its flaws. Police get confessions whether truthful or false. Recently, Psychology Today recognized that there is no science underlying the technique. They further recognized that it contains elements of “brainwashing” and “entrapment.” For an interesting Canadian decision criticizing the Reid method, click here.

Today in Montejo v. Louisiana, SCOTUS No. 07-1529, the Court overruled the Court’s prior ruling in Michigan v. Jackson, 475 U.S. 625 (1986). Jackson held that a request for counsel made in the courtroom extended to the police. Montejo seems to reject this notion and say that the police are free to try and interrogate a represented defendant and that a Miranda warning should be sufficient. Counsel are well advised to create a new form that they serve on all police department (signed by the defendant as well) notifying them that the defendant is represented, is invoking his Sixth and Fifth Amendment rights to counsel, and that any requests to communicate to the defendant whatsoever should be directed Click here to read the Associated Press discussion of this case.

Statements taken in violation of the Sixth Amendment right to counsel are inadmissible as part of the state’s substantive case against an accused, but should they be admissibile for impeachment purposes. The Court had previously ruled that statements taken in violation of the Fifth Amendment right to remain silent could be admitted at trial. Unfortunately, the Court recently extended this to include statements taken in violation of the Sixth Amendment. Kansas v Vetris, SCOTUS No. 07-1356 For a detailed criticism of the court’s ruling, check out Professor Mark Godsey’s blog here and here.

On the heels of MIranda v Arizona, 384 US 436 (1966), Congress passed 18 USC 350. This law states that the voluntariness of a suspect's statements is the sole determinant of their admissibility in federal court. The purpose of the rule was to overrule Miranda v Arizona, 384 US 436 (1966). The question presented in COrley was whether the law modified the McNabb-Mallory (McNabb v United States, 318 US 332 (1943) and Mallory v United States, 354 US 449 (1957)) which barred the admission of an arrestee's confession given after an unreasonable delay in bringing him before a judge. The high Court ruled that the statute merely guarantees the admission of voluntary statements made within six hours of a suspects' arrest. Without the McNabb-Mallory rule, federal agents would be free to question suspects for extended periods before bringing them out in the open, “and we have always known what custodial secrecy leads to.” Corley v United States, SCOTUS No. 07-10441.

Article 36 of the Vienna Convention on Consular Relations requires the United States to inform a foreign national of his/her right to consular access (to talk to his home country’s embassy or consulate) upon arrest. Vienna Convention on Consular Relations, art. 36, April 24, 1962, 21 U.S.T. 77, 596 U.N.T.S. 261. In Sanchez-Lllamas v. Oregon, 548 U.S. 331, 336 (2006), the United States Supreme Court ruled that a violation of Article 36 did not require suppression of evidence. See alsoMedellin v. Texas, 552 U.S. __, 128 S. Ct. 1346, 1355, 170 L.Ed.2d (2008). Despite repeated orders from the International Court of Justice, Texas executed two suspects earlier this year where the evidence was clear that the convictions were based on confessions obtained in violation of the suspects rights to diplomatic access. Based on Sanchez-Llamas and these developments, many member of the bar (including this one) believed that this issue was not going to prevail in any domestic court.

On September 8, 2008, a Seventh Circuit panel ruled to the contrary in a published decision. InOsagadie v United States, Seventh Circuit No. 07-113, the Court recognized the continuing viability of the Article 36 issue. The Court first recognized the importance of Article 36:

The adoption of the Vienna Convention by the international community was “the single most important event in the entire history of the consular institution.” LUKE T. LEE, CONSULAR LAW AND PRACTICE 26 (2d ed. 1991). When the United States ratified the treaty in 1969, it became the “supreme Law of the Land.” U.S. CONST. art. VI, cl. 2.

The Court then went onto stress the importance of the treaty:

Foreign nationals who are detained within the United States find themselves in a very vulnerable position. Separated from their families and far from their homelands, they suddenly find themselves swept into a foreign legal system. Language barriers, cultural barriers, lack of resources, isolation and unfamiliarity with local law create “an aura of chaos” around the foreign detainees, which can lead them to make serious legal missteps. Linda A. Malone, From Breard to Atkins to Malvo: Legal Incompetency and Human Rights Norms on the Fringes of the Death Penalty, 13 WM. & MARY BILL RTS. J. 363, 392-93 (2004). In these situations, the consulate can serve as a “cultural bridge” between the foreign detainee and the legal machinery of the receiving state. William J. Aceves, Murphy v. Netherland, 92 AM. J. INT’L L. 87, 89-90 (1998).

The Court went onto note while there is some overlap with the function of a lawyer, the overlap is not complete. There are somethings that an embassy or a consulate are uniquely qualified to do:

Of course, we assume that lawyers here are equipped to deal with language barriers; we also assume they are familiar with the law. Sometimes, however, the assistance of an attorney cannot entirely replace the unique assistance that can be provided by the consulate. The consulate can provide not only an explanation of the receiving state’s legal system but an explanation of how that system differs from the sending state’s system. See Linda Jane Springrose, Note, Strangers in a Strange Land: The Rights of Non-Citizens Under Article 36 of the Vienna Convention on Consular Relations, 14 GEO. IMMIGR. L. J. 185, 195 (1999). This assistance can be invaluable because cultural misunderstandings can lead a detainee to make serious legal mistakes, particularly where a detainee’s cultural background informs the way he interacts with law enforcement officials and judges.

The Court noted that Sanchez-Llamas was a good example of the help that a consulate can provide:

Sanchez-Llamas 2 provides a striking example. In Sanchez-Llamas, Bustillo’s defense was that another man, “Sirena,” had committed the crime. Sirena, however, had fled back to Honduras; he was nowhere to be found. “Bustillo did not learn of his right to contact the Honduran consulate until after conviction, at which time the consulate located additional evidence supporting this theory, including a critical taped confession by Sirena.”

Thus far, the Court’s opinion matches the position articulated by dissents and the International Court of Justice. Now here is where the decision gets interesting. The Court stated that Sanchez-Llamas stated that the Government was required to provide a remedy for a violation and the remedy was to internalize this violation into our domestic law. While violation of a Vienna Convention Claim would not be a self-standing violation of the Constitution or federal law requiring suppression of a confession, it could be a Fifth Amendment or a Sixth Amendment violation.

[

W]e must address the Government’s argument that Sanchez-Llamas forecloses foreign nationals from bringing ineffective assistance of counsel claims based on Article 36 violations. A close reading of Sanchez-Llamas suggests otherwise. While the Court rejected the argument that the treaty itself required suppression as a remedy, the Court stressed that there were other means of “vindicating Vienna Convention rights.” Sanchez-Llamas, 548 U.S. at 350, 126 S. Ct. 2669. Specifically, the Court stated that a defendant could raise an Article 36 violation as a part of a broader constitutional challenge, such as a challenge to the voluntariness of a statement under the Fifth Amendment. Id., 126 S. Ct. 2669; see also United States v. Ortiz, 315 F.3d 873, 886 (8th Cir. 2002). More importantly, the Court suggested that the Sixth Amendment could also serve as a vehicle for vindicating Article 36 rights. In a telling passage, the Court noted that an attorney’s failure to raise an Article 36 violation would not be “cause” for overriding a state’s procedural default rules, unless “the attorney’s overall representation falls below what is required by the Sixth Amendment.” Sanchez-Llamas, 548 U.S. at 357 & n.6, 126 S. Ct. 2669 (emphasis added).

Osagiede is a testament to the value of persistence. Mr. Osagiede prevailed on an argument that most lawyers would have rejected.